R. v. Sebastiampillai, 2016 ONCJ 149

CITATION: R. v. Sebastiampillai , 2016 ONCJ 149 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANTON XAVIER SEBASTIAMPILLAI REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on February 3, 2016, at BRAMPTON, ONTARIO APPEARANCES : T. Sferruzzi Counsel for the Crown P. Lindsay Counsel for Anton Xavier Sebastiampillai WEDNESDAY, FEBRUARY 3, 2016 REASONS FOR JUDGMENT STRIBOPOULOS, J. (Orally): Mr. Sebastiampillai is charged with two offences, having care or control of a motor vehicle: firstly while his ability to do so was impaired by alcohol or a drug; secondly while his blood alcohol concentration exceeded the legally prescribed limit; contrary

respectively to ss. 253(1) (

a) and 253(1)(

b) of the Criminal Code of Canada . The defence filed a Charter application and the parties were agreed that the evidence on that application and on the trial proper should be heard in a blended fashion. The evidence on the trial proper and on the Charter application consisted of the testimony of a single witness, the arresting officer, Constable Lupson. In

summary, Constable Lupson responded to a call for service that had come in at 10:24 p.m. on December 11, 2014. It was snowing that evening. According to the information received there was a black Mercedes lodged in a snow bank off the roadway on Highway 410 just south of Derry Road. The complainant, who was identified as a tow truck driver, had reported that the driver smelled of alcohol.

The officer arrived at the location at 10:36 p.m. where he found a black Mercedes S.U.V. stuck in about one foot to a foot and a half of snow, just off of the roadway that serves as the on-ramp where the traffic from the 407 and Derry Road merge to gain entry onto the 410. On the evidence there would appear to have been at least two tow trucks at the location. The officer could not recall whether or not the Mercedes was damaged but thought it could be moved with some effort if it had been dislodged from the snow. After arriving Constable Lupson saw the defendant standing near the Mercedes S.U.V.

Initially, the officer spoke to a tow truck driver who very well may have been the original complainant. The tow truck driver reportedly pointed at the defendant and said, “That’s the driver” and also indicated that the defendant “reeked of booze”. The officer then approached the defendant who somewhat strangely began making a call on his cell phone just at that moment. The officer directed him to get off his phone. The defendant did just that before remarking, “My brother-in-law is coming to get the car out of the ditch”.

The officer then asked him for his driver’s licence, which the defendant produced without any apparent difficulty. Based on the circumstances, including what the tow truck driver had said and the fact that the defendant was the only pedestrian in the area where there was no ready access for pedestrians, the officer concluded that the defendant was the driver of the S.U.V. Constable Lupson testified that as he began interacting with the defendant he noted that he was swaying and also detected a strong odour of alcohol emanating from him.

As he got closer the officer also noticed that the defendant’s eyes were bloodshot and watery. At this point the officer asked the defendant if he had been drinking to which he apparently responded, “Two beers”. Constable Lupson testified that he then returned to the tow truck driver and asked him if upon his arrival he’d observed the defendant exiting the driver’s side of the vehicle. The tow truck driver responded that he had. At this point the officer testified that he formed the opinion that the defendant had care and control over the motor vehicle while his ability to do so was impaired by alcohol.

He therefore proceeded to place the defendant under arrest for that offence. The time was 10:38 p.m. According to the officer, on being told that he was being arrested for impaired care and control the defendant rather bizarrely removed a wad of cash from his pocket. The officer responded by telling him to put it back in his pocket, which he did. As the officer placed his hands on him to effect the arrest the defendant stiffened up but relaxed when warned not to resist and apologized for not immediately cooperating. The defendant was handcuffed, searched, and then read his rights to counsel.

He requested to speak to Duty Counsel. Following that he was read the primary common law caution. Finally, he was next read the approved instrument breath demand. All of this was completed by 10:44 p.m. Constable Lupson and the defendant remained at the scene of the arrest until 10:52 p.m. when a second police unit arrived. A couple minutes later they departed for 22 Division where the breath testing would be undertaken. They arrived at 22 Division at 11:00 p.m. After processing the defendant spoke to Duty Counsel.

The defendant eventually furnished two breath samples, the first at 11:58 p.m., the second at 12:21 a.m. with the readings for both samples registering 160 milligrams of alcohol in 100 millilitres of blood.

With that brief overview in place, I turn to what I consider to be the decisive issue in this case. An essential ingredient that the Crown must establish beyond a reasonable doubt in order to secure a finding of guilt with respect to both the charges before the Court is that the defendant was in care or control of a motor vehicle at the time of his alleged impairment. In assessing whether or not the Crown has discharged its burden I am quite obviously restricted to a consideration of the evidence that was admissible on the trial proper.

Although the Charter application and the trial proceeded in a blended fashion, I am required to segregate the evidence heard that was only relevant to that application. Importantly, although on the Charter application the statements that Constable Lupson attributed to the tow truck driver and the defendant were relevant in assessing the adequacy of the officer’s grounds for effecting an arrest and making a breath demand, those statements are not substantively admissible on the trial proper. I note that the tow truck driver was not called as a witness at trial.

Therefore, on the trial proper the statements attributed to him are hearsay as their relevance clearly relates to the truth of the contents stated therein. Absent a hearsay exception these statements are inadmissible. There is no exception that I can conceive of that would permit such statements to be received into evidence. Therefore, I am required to disabuse myself of this inadmissible information when assessing the case against the defendant.

It would appear that there is no direct admissible evidence before me that if accepted would serve to establish the defendant was in care or control of the Mercedes that Constable Lupson found stuck in the snow on the night in question. The question that therefore emerges is whether the Crown has discharged its burden of proving this essential element based on the circumstantial evidence before the Court.

For the Crown that evidence boils down to the following: • First, that the defendant was observed standing next to a vehicle that was stuck in the snow at the side of a busy on-ramp to a highway. • Second, that the location was not meant for pedestrian traffic. There is no sidewalk in the vicinity, no shops, parks or houses. It follows that for the defendant to be present in that location he must have travelled there by means of a motor vehicle. • Third, the high visibility nature of the location and the amount of traffic passing by.

Because of this the Crown submits the police would have been called by passers by soon after the S.U.V. went off the roadway. Knowing that the radio call came in at 10:24 p.m. and that the defendant was present next to the Mercedes only 12 minutes later at 10:36 p.m. when Constable Lupson arrived, is supportive of an inference that he was the driver of the S.U.V.

When all of these various items of circumstantial evidence are combined the Crown submits that there is only one logical and irresistible inference to be drawn: that the defendant was the driver of the vehicle and therefore had care or control of it that evening. Having just set out the Crown’s circumstantial case with respect to establishing the essential element of care or control, here it is sensible to also outline what the defence submits, both in terms of its oral and written submissions, is lacking.

In short: • There is no direct admissible evidence before the Court that the defendant was ever inside the Mercedes vehicle. • There is no evidence before the Court as to who the registered owner of the Mercedes was. • There is no evidence before the Court regarding the keys for the Mercedes, whether they were in the ignition of the vehicle, somewhere inside the vehicle, or in the personal possession of the defendant, or elsewhere.

• There is no evidence before the Court as to whether or not there were any persons located in the Mercedes when Constable Lupsonarrived. • There is evidence that there was at least two tow trucks at the roadside at a certain point after Constable Lupson arrived, butimportantly Constable Lupson was unable to testify as to whether or not, beyond the two tow truck drivers, who necessarily would havebeen in attendance and associated with the vehicles, whether there were any other persons located inside either of the tow trucks at theroadside. • And, finally, there is evidence that it was a cold and snowy night.

I turn lastly to a consideration of the evidence in light of the criminal burden of proof. The law is clear: where one or more of theelements of the Crown’s case rests on circumstantial evidence the proof beyond a reasonable doubt standard requires that the onlyrational inference from the evidence be the defendant’s guilt. See: R. v. Griffin, 2009 SCC 28 at para. 33; R. v. Elmosri, (1985) (ON CA), 23 C.C.C. (3d) 503 (Ont.C.A.).

Here, considering the totality of the evidence, I am not satisfied that the Crown has discharged its burden beyond a reasonable doubt atleast in relation to the care or control element common to both of the offences charged. On the available admissible evidence there are a number of rational inferences available beyond the defendant being the driver andtherefore in care or control of the Mercedes.

For example, without evidence that there were no people sitting inside either of the towtrucks at the location, a rational alternative inference is that the defendant was a passenger in the Mercedes and that the actual driver, forexample his intimate partner, was waiting inside one of the tow trucks alone or with other passengers to take shelter from the cold on ablistery winter’s night. To be sure, on the evidence, I think the far more probable inference is that the defendant was indeed the driver trying to makearrangements for his marooned vehicle and therefore in care or control of it.

However, proof beyond a reasonable doubt requires morethan mere probabilities. On the record, despite Mr. Sferruzzi’s valiant efforts, the Crown’s evidence simply fails to neutralize all available rational alternativeinferences. As a consequence, I am required to find the defendant not guilty of both charges. The two charges are therefore dismissed. MATTER CONCLUDED Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Michelle Waters, Authorized Court Reporter, certify that this document is a true and accurate transcript of the recording of R. v.

AntonXavier Sebastiampillai, in the Ontario Court of Justice held at Toronto, Ontario, on February 3, 2016, taken from Recording Number3111_105_20160203_093107__30_STRIBOJ, which has been certified in Form 1.

March 17, 2016 ______________________ Date Michelle Waters Authorized Court Reporter Transcript Ordered...............February 3, 2016 Transcript Completed.............February 24, 2016 Ordering Party Notified..........March 17, 2016